bahawa Pempetisyen Suami diberikan akses yang munasabah terhadap anak-anak perkahwinan pada bila-bila masa dengan memberikan tiga (3) hari notis kepada Pempetisyen Isteri, sekiranya Pempetisyen Isteri mempunyai masa lapang pada hari tersebut dan anak-anak perkahwinan tidak mempunyai kelas tuisyen, aktiviti kokurikulum yang telah diaturkan terlebih dahulu. [6] In a nutshell, the Petitioner-Wife now sought custody, care, and control of the Children as well as child maintenance, whilst access was to be given to the Petitioner-Husband. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 The issues [7] The crux of this Application revolved around the justification for a variation of the Court Order. Central to this Court's deliberation was the evaluation of whether the existing terms of the Court Order were both reasonable and conducive to the welfare of the Children. [8] The Petitioner-Husband, however, raised a procedural objection, contending that the Application was flawed due to its purported reliance on sections 93 and 97 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), instead of section 96 of the same Act. [9] The Application was dismissed based on both its procedural objection and its merits, for the following reasons. Contentions, findings, and evaluation Whether this Application should have been filed under section 96 of the Law Reform (Marriage and Divorce) Act 1976 [10] At the outset of the proceedings, the Petitioner-Husband articulated a procedural objection, contending that the current Application was fundamentally flawed in its legal basis. Specifically, he argued that the Application ought to have been premised on section 96 of the Law Reform (Marriage and Divorce) Act, instead of section 97. Both sections read: S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 Section 96 – Power for court to vary orders for custody or maintenance The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. ****** Section 97 – Power for court to vary agreement for custody or maintenance The court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether made before or after the appointed date, notwithstanding any provision to the contrary in any such agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do. [Emphasis added.] [11] The Petitioner-Husband contended that since Parties had previously consented to the divorce and recorded a consent order pursuant to a joint petition, the resultant order was effectively a Court Order under section 96 of the Law Reform (Marriage and Divorce) Act, not merely an agreement as defined under section 97 of the same Act, which the Petitioner-Wife was now seeking to modify. In light of this, the Petitioner-Husband argued that it was incumbent upon the Petitioner-Wife to demonstrate to this Court a material change in circumstances as stipulated by section 96 of the Law Reform (Marriage and Divorce) Act, a requirement necessary for variation of a court order. He asserted that the Petitioner-Wife had failed to prove material change in circumstances that would justify varying the terms of the Court Order. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 Consequently, he maintained that without this requisite demonstration, this Application should be dismissed. [12] The Petitioner-Wife, on the other hand, relied on the High Court case of Hau Choong Meng lwn Heng Seet Fun [2019] 7 MLJ 694, to support her position. In her argument, the Petitioner-Wife emphasised that a consent order recorded before the Court should indeed be classified as an ‘agreement’ under section 97 of the Law Reform (Marriage and Divorce) Act. By referencing this case, the Petitioner-Wife aimed to demonstrate that consent orders have previously been interpreted by the judiciary as agreements, thus falling within the scope of section 97 of the Law Reform (Marriage and Divorce) Act. [13] In my analysis, the Petitioner-Wife’s reliance on the case of Hau Choong Meng lwn Heng Seet Fun was misconceived for several reasons. Firstly, a close examination of the judgment revealed that, contrary to what the Petitioner-Wife suggested, the court in Hau Choong Meng lwn Heng Seet Fun did indeed invoke section 96 of the Law Reform (Marriage and Divorce) Act rather than section 97. Furthermore, the court, in that case, had enquired whether there had been a material change in circumstances as prescribed by section 96 of the Law Reform (Marriage and Divorce) Act. [14] Secondly, it is important to clarify the precedents cited by the learned judge in Hau Choong Meng lwn Heng Seet Fun, which included Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465; [2004] 2 CLJ 301, Lim Chau Leng v Wong Chee Chong [2006] 2 MLJ 269 dan Peka Pic Sdn Bhd v Louis bin Md Zain [2018] MLJU 635; [2018] 1 LNS 660. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 Those cases fundamentally emphasised that a consent order constitutes a contract endorsed by the court with its authority, thus bearing the characteristics of both a contractual agreement and a judicial command. However, those precedents do not directly address the specific question of whether a consent order should be categorised under section 96 or section 97 of the Law Reform (Marriage and Divorce) Act. [15] Therefore, the cases cited in Hau Choong Meng lwn Heng Seet Fun actually do not support the proposition that a consent order should automatically fall under section 97 of the Law Reform (Marriage and Divorce) Act as an agreement and subject to easier variation. Instead, they reinforce the notion that consent orders carry the weight of a court order, implying a necessity for a demonstration of a material change in circumstances as required by section 96 for any modification. This misunderstanding in the application of these cases significantly weakened the Petitioner-Wife's position regarding the legal basis for varying the terms of the Court Order. [16] In fact, the case that is truly pertinent in distinguishing between sections 96 and 97 of the Law Reform (Marriage and Divorce) Act is W v H [1987] 2 MLJ 235. In that case, the Court was tasked with applying the Law Reform (Marriage and Divorce) Act to vary an agreement independently entered into by both the husband and wife. The crucial aspect of this case was that it concerned a separation agreement that was signed privately by both parties, without any judicial involvement or endorsement. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 [17] The scenario in W v H starkly contrasted with the facts of the present situation, where the document in question was a consent order. Unlike a privately negotiated agreement, a consent order is formally issued by the court and, therefore, carries the authority and endorsement of the judiciary. This means that the consent order in question was fundamentally a court order, and not a mere agreement between parties. The precedent set in W v H underscored the necessity of distinguishing between judicially sanctioned orders and private agreements, as the legal implications and requirements for variation under each section of the law differed significantly. This distinction was crucial in accurately determining the applicable legal framework for varying the terms set forth in the Court Order in question. [18] Consequently, this Application was procedurally flawed as it should have been framed as a variation application under section 96 of the Law Reform (Marriage and Divorce) Act based on a material change in circumstances. As such, this Application was dismissed on such grounds. [19] Nevertheless, in the interest of thoroughness and to ensure that all arguments were fully addressed, I proceeded to consider the merits of this Application. This approach ensures that all aspects of the case are explored and that justice is administered comprehensively, reflecting careful judicial consideration even in the face of procedural discrepancies. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 Whether a consent order should be disturbed [20] At the outset, it was crucial to draw the Parties’ attention to the insights shared by Mary Lim JCA (as she then was) in Lee Heng Moy & Ors v. Pacific Trustees Bhd & Ors [2016] 6 CLJ 368 regarding the nature of a consent order. Her observations, as articulated in the following passage, merit careful consideration: It is fairly settled and trite law that an order of the court reached by consent of the parties involved is in effect a contract between those parties: Ganapathy Chettiar v. Lum Kum Chum & Ors And Another Appeal [1981] CLJU 59; [1981] 2 MLJ 145. Such a consent order must therefore be given its full contractual effect - see Tan Geok Lan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465. Such an order remains valid, effective, and binding on all the parties involved until and unless the order is set aside for some vitiating reason - see the Federal Court's decision in Tong Lee Hwa & Anor v. Chin Ah Kwi & Another Appeal [1971] CLJU 143; [1971] 1 LNS 143; [1971] 2 MLJ 75. In fact, until that happens, until and unless the consent order is set aside, the consent order operates as an estoppel disallowing the defendants today from departing from its terms. [Emphasis added.] [21] This Court, therefore, must exercise caution and refrain from hastily permitting modifications to an Order that was originally consented to by both parties. On this point, I found instructive the case of Lau Hui Sing v. Wong Chou Yong [2008] 9 CLJ 232; [2008] 5 MLJ 846, where it was stated by Hamid Sultan Abu Backer J in the following passage: As a general rule, consent order even in a divorce matter must be rarely disturbed unless there are exceptional circumstances and that too clearly stated in the affidavit to warrant the intervention of the Court for the benefit of the minor children. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 Applying the above principle to the present case, the consent order must be honoured and complied with strictly by both parties, including the Petitioner Husband, since it was entered into voluntarily. [Emphasis added.] Whether this Application was reasonable and in the interest of the welfare of the Children [22] Since the Petitioner-Wife relied on section 97, the requirements that needed to be proved were whether the variation was reasonable and in the interest of the welfare of the Children. Although it was my view that the Application was flawed as it was premised on the wrong provision, I proceeded to consider if the Petitioner-Wife had fulfilled the requirement of the sections. [23] The crux of this Application centered on the allegation that the Petitioner-Husband had neglected the Children by entrusting their care to a nanny, and further asserted that the Children's skin problems were attributable to the presence of pets maintained by the Petitioner-Husband's current wife in the household where the Children had spent their time. [24] I found myself unable to accept the assertion made by the Petitioner-Wife, primarily due to the absence of concrete evidence linking the Children's skin problems to the presence of pets belonging to the Petitioner-Husband's wife. The sole basis presented was a mere assertion by the Petitioner-Wife, relying on information purportedly obtained from the Petitioner-Husband's sister, who, in turn, claimed to have received it from a doctor. However, such anecdotal evidence was S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 insufficient to establish a causal relationship, especially considering the multifaceted nature of skin allergies. [25] It was essential to recognise that skin problems may stem from various factors, and drawing a direct correlation to the pets without substantial evidence would be speculative. Furthermore, the Petitioner-Husband provided a veterinary report attesting to the good health of the pets, thereby strengthening his argument against any connection between the Children's skin condition and the presence of pets in the household. [26] Furthermore, the assertion regarding the correlation between the Children’s skin problems and the pets owned by the Petitioner-Husband's wife was vehemently disputed by the Petitioner-Husband. He asserted that the Children had already been experiencing skin problems prior to granting of the Court Order, and refuted any causal link between the Children's skin conditions and the presence of pets in the household. As such, based on the cases of Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 and Gan Koo Kea v. Gan Shiow Lih [2003] 4 CLJ 539; [2003] 4 MLJ 770, [2003] 6 AMR 459, in light of conflicting versions that have not undergone the rigorous test of cross-examination and re-examination, as would have been possible in a full trial with viva voce evidence, the Court's duty was to disregard disputed facts and make a decision on undisputed facts. [27] This crucial aspect of civil litigation practice has been eloquently summarised by Lord Templeman for the Privy Council in Tay Bok S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24, [1987] MLRA 68, [1987] 1 MLJ 433, in the following words: At the end of the day the judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's affidavits, then in the absence of oral evidence or cross examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts. [Emphasis added.] [28] The Petitioner-Wife also asserted that the Petitioner-Husband had neglected the Children by allowing them to be cared for by a nanny, raising numerous allegations about his conduct in involving the nanny in the Children's lives and delegating parental duties to her. [29] However, I found this assertion to be untenable for several reasons. Firstly, the presence of the nanny had been consistent since the Children were very young and was established even at the time when the Parties had consented to the terms of the Court Order. Notably, relying on a nanny for childcare is a common practice, especially among busy parents, and it does not automatically imply parental unfitness. In the absence of any evidence indicating that reliance on the nanny had compromised the welfare of the Children, such contention lacked substantive merit. [30] On this note, I drew parallels to the case of Lim Wei Kiat v Yeow Li Li [2019] MLJU 557, where the Court held that ‘the fact that the said children are being looked after and supervised by the family members S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 of the husband, the maid and the driver do not constitute material change in circumstances warranting a change in custody save and except in cases where evidentiary materials are adduced to show the adversity impacted on the said children by such an arrangement. The fact that the husband who is now a single parent has to juggle and balance all available resources to provide for and care for the said children as best as such circumstances can offer should not be held against him save and except in the presence of better alternatives.’ [31] Moreover, considering that the Children are now aged 11 and 9, they have reached an age where they no longer require the continuous services of a nanny. Additionally, the Petitioner-Husband's evidence regarding the purchase of a new, spacious house for the Children's residence, as well as arrangements for schooling, suggests proactive steps taken to cater to their welfare. [32] I also had to consider that it would not be in the best interest of the welfare of the Children to remove them from their current environment, where they enjoy the comfort and love of the Petitioner-Husband's family. This position was reinforced by the precedent established in the case of Wong Kim Foong (F) v Teau Ah Kau @ Chong Kwong Fait [1998] 1 CLJ 358; [1998] 1 MLJ 359, where the Court stressed the importance of maintaining a child's stability by preserving their familiar surroundings and relationships. [33] I was, therefore, unable to agree that allowing this Application would be in the interest of the welfare of the Children. S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 [34] Since I took the view that custody of the Children should remain with the Petitioner-Husband, there was no necessity for the Petitioner-Wife to be awarded any form of child maintenance, as she had sought in this Application. Concluding remarks [35] In my view, it appeared that the primary issue underlying the Petitioner-Wife’s grievance was the Petitioner-Husband's remarriage and the establishment of a new family. This seemed to be the root cause behind her accusations of the Petitioner-Husband’s neglect towards the Children. [36] It was crucial to recognise that remarriage and the formation of a new family unit do not automatically translate into neglect of children from a previous marriage. While it was undeniable that the Petitioner-Husband's attention may now be divided, this division alone does not constitute neglect of the Children. [37] The Petitioner-Wife must recognise that life's progression, including forming new relationships and family structures, is natural and should not serve as grounds for altering previously agreed-upon arrangements. It is essential for both Parties to focus on maintaining the welfare of the Children involved, rather than viewing the Petitioner-Husband's remarriage itself as a fault. The intent to modify the terms of an order should be based on material change in circumstances that directly affect the well-being of the children, rather than personal S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 grievances stemming from the Petitioner-Husband moving forward with his life. [38] In conclusion, after careful consideration of the arguments presented and a thorough examination of all the evidence, both written and oral, provided by both Parties, this Application was dismissed with costs Dated: 30 April 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner-Husband – Ng Kee Way; Messrs Ng, Zainurul, Seke & Khoo For the Petitioner-Wife – Chris Chin and Tan Han Rui; Messrs Shang & Co S/N bXTkw1w5eEajjw8Uhe5mkg 30 April 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 Cases referred to: ➢ Diana Clarice Chan Chiing Hwa v. Tiong Chiong Hoo [2002] 1 CLJ 721, [2002] 2 MLJ 97, [2002] 2 AMR 1527 ➢ Gan Koo Kea v. Gan Shiow Lih [2003] 4 CLJ 539; [2003] 4 MLJ 770, [2003] 6 AMR 459 ➢ Hau Choong Meng lwn Heng Seet Fun [2019] 7 MLJ 694 ➢ Lau Hui Sing v. Wong Chou Yong [2008] 9 CLJ 232; [2008] 5 MLJ 846 ➢ Lee Heng Moy & Ors v. Pacific Trustees Bhd & Ors [2016] 6 CLJ 368 ➢ Lim Chau Leng v Wong Chee Chong [2006] 2 MLJ 269 ➢ Lim Wei Kiat v Yeow Li Li [2019] MLJU 557 ➢ Peka Pic Sdn Bhd v Louis bin Md Zain [2018] MLJU 635; [2018] 1 LNS 660 ➢ Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465; [2004] 2 CLJ 301 ➢ Tay Bok Choon v. Tahansan Sdn Bhd [1987] CLJ Rep 24, [1987] MLRA 68, [1987] 1 MLJ 433 ➢ W v H [1987] 2 MLJ 235 ➢ Wong Kim Foong (F) v Teau Ah Kau @ Chong Kwong Fait [1998] 1 CLJ 358; [1998] 1 MLJ 359 Legislation referred to: ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 93, 96, 97 S/N bXTkw1w5eEajjw8Uhe5mkg